Disparate Statistics

Statistical evidence is crucial throughout disparate impact’s three-stage analysis: during (1) the plaintiff’s prima facie demonstration of a policy’s disparate impact; (2) the defendant’s job-related business necessity defense of the discriminatory policy; and (3) the plaintiff’s demonstration of an alternative policy without the same discriminatory impact. The circuit courts are split on a vital question about the “practical significance” of statistics at Stage 1: Are “small” impacts legally insignificant? For example, is an employment policy that causes a one percent disparate impact an appropriate policy for redress through disparate impact litigation? This circuit split calls for a comprehensive analysis of practical significance testing across disparate impact’s stages. Importantly, courts and commentators use “practical significance” ambiguously between two aspects of practical significance: the magnitude of an effect and confidence in statistical evidence. For example, at Stage 1 courts might ask whether statistical evidence supports a disparate impact (a confidence inquiry) and whether such an impact is large enough to be legally relevant (a magnitude inquiry). Disparate impact’s texts, purposes, and controlling interpretations are consistent with confidence inquires at all three stages, but not magnitude inquiries. Specifically, magnitude inquiries are inappropriate at Stages 1 and 3—there is no discriminatory impact or reduction too small or subtle for the purposes of the disparate impact analysis. Magnitude inquiries are appropriate at Stage 2, when an employer defends a discriminatory policy on the basis of its job-related business necessity

How People Judge What Is Reasonable

A classic debate concerns whether reasonableness should be understood statistically (e.g., reasonableness is what is common) or prescriptively (e.g., reasonableness is what is good). This Article elaborates and defends a third possibility. Reasonableness is a partly statistical and partly prescriptive “hybrid,” reflecting both statistical and prescriptive considerations. Experiments reveal that people apply reasonableness as a hybrid concept, and the Article argues that a hybrid account offers the best general theory of reasonableness. First, the Article investigates how ordinary people judge what is reasonable. Reasonableness sits at the core of countless legal standards, yet little work has investigated how ordinary people (i.e., potential jurors) actually make reasonableness judgments. Experiments reveal that judgments of reasonableness are systematically intermediate between judgments of the relevant average and ideal across numerous legal domains. For example, participants’ mean judgment of the legally reasonable number of weeks’ delay before a criminal trial (ten weeks) falls between the judged average (seventeen weeks) and ideal (seven weeks). So too for the reasonable num- ber of days to accept a contract offer, the reasonable rate of attorneys’ fees, the reasonable loan interest rate, and the reasonable annual number of loud events on a football field in a residential neighborhood. Judgment of reasonableness is better predicted by both statistical and prescriptive factors than by either factor alone. This Article uses this experimental discovery to develop a normative view of reasonableness. It elaborates an account of reasonableness as a hybrid standard, arguing that this view offers the best general theory of reasonableness, one that applies correctly across multiple legal domains. Moreover, this hybrid feature is the historical essence of legal reasonableness: the original use of the “reasonable person” and the “man on the Clapham omnibus” aimed to reflect both statistical and prescriptive considerations. Empirically, reasonableness is a hybrid judgment. And normatively, reasonableness should be applied as a hybrid standard

Richard D. Dunphy and The Prices and Prizes of War

Like many immigrants during the mid-nineteenth century, Irishman Richard D. Dunphy served his new country in the Civil War, albeit not entirely willingly. The wounds he sustained during the war were grave, including the loss of both arms. He received some reward for his sacrifice from his country: a monthly pension, a Medal of Honor, and a notability lacked by other faceless coal heavers. As with other great conflicts, the war played a pivotal role in the lives of its participants, especially in the case of Richard Dunphy. [excerpt

The Saint Patrick’s Battalion: Loyalty, Nativism, and Identity in the Nineteenth Century and Today

Two decades before the Irish Brigade covered itself with glory, an earlier unit of Irish immigrants had won renown for its service during the Mexican American War. Calling themselves the Saint Patrick’s Battalion, these men marched under a flag of brilliant emerald decorated with Irish motifs: a harp, a shamrock, and the image of Saint Patrick [excerpt]

Beyond the Battlefield: The Park That Once Was Stevens’s Furnace

If you’re a frequent reader of the Compiler, it comes as no news to you that the Gettysburg area is historic for more than just its battlefield. From a pre-war African American community to the World War I tank camp commanded by a young Dwight Eisenhower, Gettysburg has a rich and vibrant history that the time-frozen battlefield, however majestic in its own right, all too often obscures. One of my favorite places in the region, however, is a state park located just fourteen miles west of town. Nestled amidst the ridges of South Mountain, Caledonia State Park stands on land once part of the Caledonia Furnace complex owned by the famed congressman Thaddeus Stevens. [excerpt